89 Ill. 425 | Ill. | 1878
delivered the opinion of the Court:
The only ground upon which it is seriously contended by counsel for appellants that the court below erred in denying this petition is, that the newly discovered matter presented in the petition was such as to require the court to give leave to file the bill of review. It is conceded that, for such purpose, it is necessary that the new matter should not be cumulative merely, and must be such as would have produced a different result. It is, however, strenuously insisted that the mere fact that the defendants in the original bill, made conveyance of the property in question during the pendency of that suit, without leave of the court, without the knowledge of the parties, and without notice to the parties, was a fact which, if known before the entering of the final decree in the original suit, and brought to the attention of the court, would have produced a different result. This position we think is entirely untenable. A conveyance by a defendant in a bill in chancery brought for a specific performance of a contract to convey real estate, is entirely inoperative as against the rights of the complainants. The defendants in that suit, if they felt confident of final success, and if they found a purchaser who was willing to take the risk of their final success, might well make the sale of the property. The rights of the complainant could not in any contingency be affected thereby. It is said that they thereby rendered themselves incapable of performing the decree for the specific performance by conveying the property to the complainants in the original suit. This is a misapprehension. Their deed made pendente lite, as already stated, could not be operative as against the final decree of the court, and would be entirely subordinate to the deed made in pursuance of the final decree of the court, had the decree been in favor of a specific performance.
The judgment of the court below must be affirmed.
Judgment affirmed.
